Hey, Wasn’t That You…? Images, Videos and the Need for Appearance Releases Online

Above: The scene of my reputational demise. [Public Domain Image]

We are clearly at a crossroads regarding rights of publicity, copyright and online media. Anyone who has seen the new movie, “The Circle,” might think that we have actually passed the point of no return, at least with respect to privacy and the ability to protect one’s reputation.

Like many of us, I have had the misfortune of having some past conduct or activity resurrected and shared later at a most inopportune time. One day when I was 15 and away at boarding school, three of my closest friends burst into my room and hung me out of an upper story window by my legs. Understandably, I rather loudly and profanely implored them to bring me back inside, a request they eventually complied with.

There were no immediate reputational consequences for me from this public “outing.” It would be almost a year later, as I was concluding my initial remarks as the new house president to the residents, that a hand would shoot up in the back from a new arrival – “Hey, wasn’t that you being hung out the window during my campus tour last year? You were really cursing and screaming. My dad asked our tour guide what the heck was going on, but he refused to acknowledge that the event was even occurring!”

Perhaps the better course, when confronted at our meeting, would have been for me to deny the incident ever happened as well. However, I had already turned beet red and essentially acknowledged that he was correct – “Yes, ‘twas I indeed,” I meekly responded.

And with that curt admission, needless to say, my efforts to exude leadership and authority as new house president were instantly and indelibly eviscerated.

Thank goodness the only documentation of this event was anecdotal. Imagine today in the era of smartphones, Facebook Live and YouTube, how much more broadly and permanently my demise would have been memorialized.

Models and actors put their reputation at stake every time they stand in front of a camera. It is common to learn of actors cringing over their early work as their careers develop.

So, this raises the question, how much control do individuals have in protecting their reputation online? And as an inverse corollary, how concerned do media companies such as producers and publishers, as well as regular businesses, non-profits, local governments and academic institutions, need to be with these issues? The short answer is that, while individuals have very limited control, it nevertheless behooves any entity that promulgates online content to proceed thoughtfully and deferentially regarding these matters.

The law sadly, as is often the case, provides little clear guidance. A pair of recent opinions from the Ninth Circuit, in particular, underscore the inherent complexities and seeming inconsistencies in balancing the respective rights and obligations of those whose pose or perform versus those who photograph, film or publish.

In Garcia v. Google, a walk on actress actually received death threats after her lines were overdubbed, transforming her brief performance “into part of a blasphemous video proclamation against the Prophet Mohammed.” Nevertheless, the Ninth Circuit declined to sustain an injunction against Google enjoining dissemination of the video based on copyright infringement, holding that an actor’s performance is not separately copyrightable. The Garcia Court did note that ‘[p]rivacy laws, not copyright, may offer remedies tailored to Garcia’s personal and reputational harms.”

Yet, on April 5, 2017, the Ninth Circuit, considered this issue again in Maloney v. T3 Media, albeit in a slightly different context. In denying any remedy to student-athlete plaintiffs for the unauthorized licensing of photographs of them, the Ninth Circuit held that the plaintiffs could not assert a publicity right claim, because state law publicity rights (which emanate from privacy laws) are preempted by federal copyright law when “a likeness has been captured in an artistic work [i.e. a photograph] and the work itself is being distributed for personal use,” even when such “personal use” distribution occurs pursuant to a commercial license for remuneration.

While the Maloney Court sought to distinguish its holding from other right of publicity cases by distinguishing between commercial and non-commercial, personal use, it is completely unclear how Maloney is to be reconciled with Garcia. The Maloney Court never mentioned the Garcia case. And other jurisdictions, besides the Ninth Circuit treat these issues differently.

Consequently, the most prudent course for anyone disseminating photographs or videos online, is to at least consider whether obtaining an appearance release from the subject of the film or photograph may be warranted. For example, you’d better not post a video of me online without my permission the next time somebody hangs me out of a window without my permission!